LEGAL UPDATE:

IF YOU DON’T ASK, YOU DON’T GET!
– Requiring employees to work on public holidays

Authors: Joellen Munton & Callum Sirker

A successful appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) against the decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCSP Pty Ltd (No 2) [2022] FCA 132 has clarified employees’ rights surrounding working on public holidays.

The case arose when the CFMMEU objected to OS’s requirement that mining workers complete their rostered shifts on Christmas and Boxing Day.  OS’s contract arrangements required employees to work on public holidays if rostered on those days, but allowed employees to make leave applications for those days. When more people applied for leave than could be accommodated by the need to maintain staffing, names were drawn out of a hat to see who could take leave.  At first instance, it was held that the employer had not breached the National Employment Standard (“NES“) in Fair Work Act 2009 (Cth) (“FW Act“) section 114, which grants employees a right to be absent on public holidays without loss of pay, unless the employer has made a reasonable request that they work, and they have no reasonable excuse for refusing. The primary judge held that OS’s requirement was equivalent to a request to work, and as it was reasonable given the need to operate shifts on those public holidays, it did not breach section 114. This decision has now been overturned by Justices Berna Collier, David Thomas, and Elizabeth Raper in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51.

The Appeal and the FW Act
In upholding the appeal, the Full Court examined sub-section 114(2) permitting an employer to request an employee to work on a public holiday and sub-section 114(3), which provides that a request can be refused if it is not reasonable, or the employee’s refusal is reasonable. The crux of the appeal lies in the Court’s explanation of the meaning of ‘request’ in the FW Act.

The Court held that a ”request” within the meaning of sub-section 114(2) has its ordinary meaning, that is, request means a proposition put to employees in the form of a question. It does not extend to an “unilateral command” (paragraph [38]) that the employee must work on the public holiday. The need for a request indicates that the employee is entitled to be consulted, to discuss whether the request is reasonable, and to refuse so long as refusal is reasonable in all the circumstances. The Court noted that this process addressed the “inherent power imbalance that exists between employers and employees” (at [38]). Without the need for a request, many employees will be unaware of their NES right to be absent on public holidays without loss of pay.

The Full Court said that “undisputed evidence” before the primary judge indicated that OS never made a request under sub-section114(2), but rather, assumed that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted.

This meant that the Court found that OS was in breach of sub-section 44(1) providing that an employer must not contravene a provision of the NES including section 114.

What Should Employers do? 
Employers should take note of the lesson from this judgment and:

• Be sure that any need for employees to work on public holidays is dealt with by making requests to employees, and not merely by issuing directions. Requests under section 114 should be phrased in a way that indicates why the request is reasonable, given the needs of the business. The factors determining whether a request is reasonable are listed in sub-section 114(4) and include the nature of the enterprise and its operational requirements; the employee’s own personal and family circumstances; whether additional payment in the form of overtime or penalty rates will apply; whether the employee is full-time, part-time or casual; and how much notice is given of the need to work on the public holiday.
• Make these requests with adequate time for employees to consider the request and offer their own reasons for refusal if they wish to do so.  If an employee’s reasons for refusing a reasonable request are not reasonable, taking into account the factors in sub-section 114(4), an employer can require the employee to work without breaching section 44.
• Note that it is not sufficient to include a term in an employee’s employment contract stipulating that they agree to work on public holidays. Contracts cannot override employees’ rights in the NES.

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